In Depth

The manufacturer defendants in a suit claiming defects in their measuring cup caused the death of a 9-year-old boy are entitled
to summary judgment, the Indiana Supreme Court affirmed today. The undisputed evidence in the case showed if there was an
overdose of codeine in the boy's bloodstream, it wasn't caused by any alleged defects in the cup itself.

In Jim and Jill Kovach, individually and on behalf of deceased minor child Matthew Kovach v. Caligor Midwest, et al., No.
49S04-0902-CV-88, the high court found the causation issue in the case dispositive as to all causes of action. The Kovaches
asserted four claims against Caligor Midwest and other manufactures of the medicine cup under the Indiana Product Liability
Act and the Uniform Commercial Code. The Indiana Court of Appeals reversed summary judgment in favor of the defendants, holding
genuine issues of fact precluded summary judgment on the claims. Justice Theodore Boehm noted that the Supreme Court has yet
to address whether the PLA preempts warranty-based theories of recovery for physical harm, but decided not to resolve that
issue because it was only raised by amici. The high court also declined to address several collateral issues the parties raised
on appeal.

The parents claimed if the medicine cup had been better suited as a precision measuring device or had contained a warning
that it wasn't suitable for precision measurement, their son wouldn't have received an overdose. The nurse that gave
him the codeine testified she gave him the 15mL prescribed by filling the cup up halfway; Jim Kovach argued he saw the cup
filled all the way up to the 30 mL level.

An autopsy showed Matthew had more than twice the recommended therapeutic level of the drug in his system, and the undisputed
evidence in the case shows if there was an overdose, it wasn't caused by an imprecise measurement of the drug attributable
to less than readily discernable marks, wrote the justice.

"Rather, if the codeine was the cause of Matthew's death, it was due to an erroneous double dosage of 30 mL of codeine
when Matthew was supposed to receive 15 mL. The accident therefore cannot be attributed to any alleged defects in the cup
itself," he wrote.

The justices also declined to address whether a failure to warn against the cup's use for precision measurement was required
because even if it had been given, it wouldn't have prevented the overdose, Justice Boehm wrote.